September 05, 2013
Conti-Brown On The Non-Justiciable Unconstitutionality Of The FOMC
Posted by David Zaring

This is quite interesting, and not implausible, given the presence and voting rights, if not actual power, of the heads of the regional reserve banks on the FOMC:

The presence of the Reserve Banks on the FOMC creates two constitutional debilities. First, the President does not appoint, and the Senate does not confirm, the Banks’ presidents. (Note that while the statute does not require that the Reserve Bank representative be the president, the president is in practice almost always the Bank’s representative.) They are appointed by two-thirds of the directors of each bank. 12 U.S.C. § 341....

Second, the President’s removal authority with respect to the FOMC is circuitous. 

.... [But] this is a constitutional defect that is virtually cosmetic. In Free Enterprise Fund, the Court found a constitutional defect in the inability of the President to remove members of the PCAOB, and eliminated that restriction by judicial fiat. The PCAOB continues to operate just as it had done; its members are appointed just as they had been; and there is no evidence anywhere (that I am aware of) that the PCAOB’s enforcement behavior has changed a bit since the case was decided in 2010. 

It is no big thing, but Justice Breyer's dissent in the PCAOB case suggested that the case might spawn lots of problems, and so - or perhaps yet - Conti-Brown is probably right.  The PCAOB case directed the courts to police the appointments and removal set-ups of inferior/internal "agencies" exceedingly closely ... and then administer the lightest of wrist-slaps upon finding a violation.  My suspicion is that the open markets committee is safe, even if it is "unconstitutional."

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